What Trump can do to hit abortion facilities where it hurts

August 8, 2018 (Population Research Institute) – In June, the Department of Health and Human Services (HHS) issued a new rule proposal that, if adopted, would stop funding for abortion providers through the Department's Title X family planning program. Pro-life advocates have been calling the new rule the "Protect Life Rule." This rule is a good first step, but there are several ways it could be strengthened.

As currently written, the Protect Life Rule would prohibit Title X funding for organizations that perform, promote, offer referrals for, or lobby for abortion unless they maintain a "bright line" of separation between Title X services and abortion. It would prevent abortion providers from offering Title X services in the same facilities and clinics where they perform abortions. Importantly, it would also do away with a Clinton-era regulation that requires all Title X grantees to provide abortion counseling and referrals.

The Protect Life Rule is expected to hit abortion providers like Planned Parenthood hard. Planned Parenthood spends nearly $60 million in funds derived from Title X grants every year, according to a recent report from the Government Accountability Office. Title X is the second largest source of government funding for Planned Parenthood, representing approximately 11% of all federal and state funds the organization receives.

Democratic governors in 14 states have already sent a letter to HHS Secretary Alex Azar asking him to disapprove the Protect Life Rule, threatening to explore "all possible avenues, including legal options" to stop the policy from taking effect. Signatories include Democrat Governors Gina Raimondo of Rhode Island, Steve Bullock of Montana, Kate Brown of Oregon, Roy Cooper of North Carolina, and Ralph Northam of Virginia.

Despite the governors' threat, the Protect Life Rule is not likely to be ruled unconstitutional in federal court. A nearly identical version of the Protect Life Rule was put in place by HHS under the Reagan and first Bush administrations. When a legal challenge to this Reagan-Bush Title X rule was brought to the Supreme Court inRust v. Sullivan (1991), the Supreme Court sided decisively in favor of the government. The Court upheld the rule on both statutory and constitutional grounds.[1]

Federal law under the Public Health Service (PHS) Act prohibits Title X funds from being spent in "programs where abortion is a method of family planning."[2] But despite this provision of the PHS Act, under the Clinton, second Bush and Obama administrations, HHS has allowed abortion providers to use the same facilities, waiting rooms, exam rooms, phone numbers, staff, workstations, and the same financial and patient records for both Title X services and for abortion.

Currently, providers that offer Title X services in facilities that are also used for abortion are only required by the government to pro-rate the costs when utilizing common areas. This has raised serious concerns that federal funds are being commingled with the provider's abortion activities. It has also raised fungibility concerns that Title X money is being used to indirectly support a Title X grantee's abortion business by providing revenue for the same facilities that engage in abortion activities. Under current federal regulations, Title X grantees are also required to offer abortion counseling and to provide abortion referrals upon client request, a practice clearly contrary to both the spirit and letter of the PHS Act.

The Protect Life Rule, if adopted by HHS, would help prevent the commingling of Title X funds with abortion services and it would be a step in the right direction in protecting the conscience rights of health care workers.

But while the Protect Life Rule is a significant improvement over the status quo, the proposed rule still falls short of ensuring that Title X funds are not being used to support abortion in Title X projects. The rule also still needs improvement in the area of safeguarding the conscience rights of health care workers in Title X programs. Below, we have listed some recommendations for how HHS can improve the Protect Life Rule. To see a more detailed and complete explanation of these points, you can read our full comment submitted to HHS here.

Our recommendations are:

Stop Title X projects from offering passive abortion referrals

Currently, federal regulations allow Title X grantees to provide abortion referrals to Title X clients if they ask for one or when "medically indicated."[3] Title X doctors are allowed to provide patients with the names, addresses, and phone numbers of abortion clinics but are not permitted to take further action such as scheduling an appointment at an abortion clinic on the patient's behalf.[4]
The Protect Life Rule would limit, but not eliminate, the ability of Title X providers to provide abortion referrals. The Protect Life Rule explicitly prohibits Title X projects from providing direct abortion referrals such as providing and identifying for the patient names, addresses and phone numbers of abortion providers. The Rule would also prohibit Title X clinics from providing "any other affirmative action to assist a patient to secure such an abortion."[5]

However, the Rule, by design, carves out a specific loophole for abortion referrals. The Rule allows Title X doctors to provide patients who want an abortion with a list that includes contact information for both comprehensive health providers and health providers that offer abortion. Title X doctors would only be able to provide this list to patients who have clearly stated that it is their intention to have an abortion and doctors would also be free not to provide this list if they so choose.

While the Rule would prohibit Title X providers from identifying for their patients which providers on the list offer abortion, ultimately, Title X doctors, under this mechanism, would still be providing their patients with information on where they can obtain an abortion. All the patient would have to do in order to find out which ones offer abortion would be to simply call each provider on the list.

It is not clear why HHS has created this loophole in the Protect Life Rule. According to the HHS' own reasoned analysis for the Rule, the PHS Act's prohibition on abortion "includes any action that directly or indirectly facilitates, encourages, or supports in any way the use of abortion as a method of family planning" (emphasis added).[6]

A version of the Protect Life Rule that was in place during the Reagan and first Bush administrations also included the abortion referral loophole. HHS attempts to justify its position for including the loophole in its proposed rule by pointing to a provision in the annual budget act that stipulates that "all pregnancy counseling shall be nondirective."[7]

While federal law does require that all pregnancy counseling provided through a Title X program be "nondirective," there is nothing requiring Title X projects to offer pregnancy counseling in the first place. Indeed, even the HHS in the new proposed rule makes it clear that Title X projects are not supposed to provide pregnancy services of any kind. In its reasoned analysis for the proposed rule, HHS states:

"pregnant women must be referred for appropriate prenatal care services, rather than receiving them within a Title X project, because those services are not part of family planning services within the Title X program."[8]

There is no need, then, for Title X projects to be providing pregnancy counseling as these services are outside of the scope of the Title X program. And consequently, HHS should revise its proposed rule to prohibit Title X grantees from providing abortion referrals of any kind, including through providing clients with lists that include information on abortion providers.

HHS needs to decide whether it considers pregnancy counseling a part of Title X programming or it not. The HHS' current position is logically untenable. It cannot claim to provide pregnancy counseling in some situations and not others. This inconsistency could weaken the Department's position should the Rule be challenged in court.

Stop Title X funding for organizations that perform or promote abortion at off-site locations

Under current federal regulations, abortion clinics are eligible to receive Title X grants.

The Protect Life Rule would by and large prevent facilities that perform abortion from receiving Title X funding. The Protect Life Rule would require Title X grantees to use separate facility entrances and exits, different waiting rooms, exam rooms, phone numbers, accounting and patient records, websites, and workstations for Title X services and for abortion. The Protect Life Rule would thus require Title X projects to maintain "physical and financial separation" from abortion activities.[9]

However, the Protect Life Rule would not stop funding to organizations that provide abortion at separate off-site locations. To illustrate what this means, consider the following hypothetical scenario. Under the Protect Life Rule, a Planned Parenthood clinic that provides on-site abortions (we'll call this "clinic 1") would not be eligible to receive Title X funding. But a Planned Parenthood clinic (in the same city let's say, we'll call it "clinic 2") that does not offer abortion inducing drugs or in-clinic abortions on-site may still qualify for Title X funding – that is, if they agree to remove all abortion brochures and information from that clinic and if that clinic agreed not to provide abortion referrals, et cetera. In this hypothetical scenario, both clinic 1 and clinic 2 would be operated by the same Planned Parenthood affiliate, that is to say, they would both be operated by the same organization. But clinic 2 would be eligible to receive Title X funding and the other would not.

Imagine now a scenario where a potential client is seeking Title X services. It is not stretch of the imagination to conceive that the client may accidentally go to clinic 1 expecting to receive Title X services. After all, clinic 2 on the other side of town does. Why would clinic 1, which is operated by the same organization, not also have Title X services? It seems like a logical assumption. But since clinic 1 isn't bound by the Protect Life Rule, the clinic is free to offer the client abortion information and counseling, something the client would not have otherwise have been forced to endure had they gone to clinic 2 instead.

And since both clinic 1 and clinic 2 are operated by the same organization, there are also fungibility concerns with funding clinic 2. By providing Title X funding to clinic 2, the government could be indirectly supporting the abortion business of clinic 1 if Title X funds are being used to subsidize the organization on the whole. By funding clinic 2, the government is necessarily endorsing the organization as well. This could create a false impression for many Americans that the Title X program promotes abortion.

In order to prevent this, HHS needs to revise the Protect Life Rule to require Title X grantees to maintain complete "organizational separation" when engaging in prohibited abortion activities. This means that an organization that wishes to engage in abortion activities must do so with an organization that is legally distinct from the organization receiving Title X funding.

Under this arrangement, the Title X grantee would still be able to engage in abortion activities, but they would have to use a different organization in order to do so. And while even this arrangement is not entirely satisfactory (i.e. the grantee still gets federal funds while being allowed to promote abortion with another organization), it is about the best pro-life advocates can hope for until Roe v. Wade is overturned and the right to life for the unborn is restored.

The Supreme Court in FCC v. League of Women Voters of California (1984) ruled that it is impermissible for the government to force an organization to surrender a fundamental right as a precondition for receiving a government grant. However, in FCC v. League of Women Voters of California and in Regan v. Taxation With Representation (1983) the Court found that it is permissible for the government to require organizations receiving a government benefit (such as a grant, for instance) to establish a separate organization with which to engage in First Amendment activities that the government does not want to subsidize.[10] Consequently, HHS cannot require organizations applying for Title X grants to surrender their First Amendment right to free speech (remember, the Protect Life Rule prohibits Title X projects from promoting or lobbying for abortion). However, HHS is able to require Title X grantees to establish a separate organization for engaging in abortion-related activities that the American taxpayers don't want to pay for.

Exempt health care workers in Title X projects from having to provide assistance or referrals for contraceptive methods that violate their religious beliefs

There are also concerns, under the HHS proposed rule, that there are not sufficient safeguards in place to protect the conscience rights of health care workers when faced with having to provide assistance or referrals for contraceptive methods which may violate their religious beliefs.

Federal regulations currently allow Title X grantees to only provide Natural Family Planning if they so choose – just so long as the Title X project on the whole offers "a broad range" of family planning methods and services.[11] As a result, organizations receiving Title X grants would not have to provide contraceptive methods that they do not want to provide. However, this does not stop Title X grantees from forcing their employees to provide or assist in providing contraceptive methods that may violate their religious beliefs.

Furthermore, the PHS Act and federal regulations appear to require Title X grantees to provide referrals for contraceptive methods that they do not provide themselves.[12] This arrangement could be problematic for some organizations or health care workers that may be opposed on religious grounds to providing referrals for certain contraceptive methods.

Federal law under the Church Amendments prohibit Title X grants from requiring any health care worker to perform or assist in an abortion or sterilization in violation of their religious or moral beliefs.[13] The Church Amendments also allow organizations receiving Title X funds to refuse to make abortion or sterilization available in their clinics or facilities.[14] But neither the Church Amendments nor the Department's regulations on Title X specifically exempt health care workers from having to participate in their employer's activities in providing other contraceptive methods besides permanent sterilization.

The Religious Freedom Restoration Act of 1993 (RFRA), however, states that the government "shall not substantially burden a person's exercise of religion."[15] The government can only choose to significantly abridge the right to free exercise of religion if (and only if) it can prove that a) such a restriction advances a "compelling interest" of the government and b) that such an interest is advanced in the "least restrictive means" possible.[16] Essentially, RFRA makes it clear that any attempt to restrict the free exercise of religion by the government is subject to strict scrutiny, i.e. it is subject to the most rigorous standard of judicial review.

In Burwell v. Hobby Lobby Stores, Inc. (2014), the Supreme Court ruled that the Obama administration's HHS Contraceptive Mandate, forcing all employers to pay for all FDA-approved methods of contraception in their employee's health care plans, was a violation of RFRA.

As federal regulations on Title X appear to require Title X grantees to provide referrals for all family planning methods except abortion, the situation is not wholly different from the Hobby Lobby case. Thus, HHS, in compliance with its statutory requirements under RFRA, should revise its proposed rule to specifically exempt health care workers in Title X projects from being required to offer referrals or assistance in providing family planning methods which violate their religious beliefs.

Make it clear that providing training or technical assistance in support of abortion are prohibited under the Protect Life Rule

The Protect Life Rule makes it clear that Title X projects "may not perform, promote, refer for, or support, abortion as a method of family planning, nor take any other affirmative action to assist a patient to secure such an abortion."[17] It would seem from this that HHS would consider training and technical assistance for abortion as activities that "support" abortion.

Indeed, it would clearly seem contrary to the PHS Act if Title X grantees were allowed to use Title X funds to provide training on abortion methods, training on abortion lobbying, or technical assistance for abortion clinics by tracking abortion service statistics or abortion equipment inventory.

However, HHS should not leave room for interpretation on this point. Training and technical assistance are noteworthy and distinct activities on par with performing, promoting, or referring for abortion. §59.16 of HHS' proposed rule further specifies that Title X projects may not lobby for abortion, take legal action on abortion issues, advertise for abortion, or pay dues to associations that promote abortion as a significant part of their activities. Providing training or technical assistance for abortion is not an uncommon activity for organizations that engage in abortion advocacy. Thus, a specific prohibition on training and technical assistance (TA) in support of abortion – or for that matter, training or TA in support of organizations that promote abortion as a more than insignificant part of their activities – would provide greater clarity in implementing the Department's regulations.

In summary, the Trump Administration's Protect Life Rule is an excellent first step. HHS should be lauded for proposing these much-needed revisions to Title X regulations. But adopting the suggestions we provide here would strengthen the Rule even further.

[10]See Rust v. Sullivan, 500 U.S. 173, 196 (1991) (quoting FCC v. League of Women Voters, 468 U.S. 364, 400 (1984)). See also Regan v. Taxation With Representation, 461 U.S. 540 (1983): In this case, the Supreme Court found that the government was not required to extend 501(c)(3) status to an organization that engaged in lobbying as a substantial part of its activities. The Court reasoned that it appeared that the defendant in this case could maintain both a 501(c)(4) organization for lobbying activities and a separate 501(c)(3) for non-lobbying activities. With this arrangement, the Court found "The IRS apparently requires only that the two groups be separately incorporated and keep records adequate to show that tax-deductible contributions are not used to pay for lobbying. This is not unduly burdensome" Regan v. Taxation With Representation, 461 U.S. 540, 544 (1983).

[12] The PHS Act requires States applying for federal Title X funding to demonstrate to the HHS a "plan for a coordinated and comprehensive program of family planning services" (Public Health Service Act, sec. 1002 (codified as amended at 42 U.S.C. § 300a(a))). Implicit in the term "coordinated" is the ability of Title X providers to offer referral services. Under current federal regulations, Title X grantees are required to "Provide for coordination and use of referral arrangements with other providers" (42 C.F.R. § 59.5(b)(8)). Thus, it would seem that the Department would require Title X grantees to provide referrals for contraceptive services that they do not provide themselves. The Protect Life Rule would only modify this requirement by prohibiting Title X doctors from making abortion referrals but would not otherwise provide any exemptions for health care worker objecting to contraceptive methods referrals on religious grounds.